Trustees and administrators of Ontario registered pension plans: beware of Form 7.

That’s the form that administrators of registered pension plans must complete, and send to their pension fund trustees, that summarizes the estimated employer and employee contributions that will be due to be made to the pension plans in future. The form must be provided by the registered administrator of every Ontario registered pension plan to the trustee, at least annually. If there’s a change to the estimated future pension contribution requirements, the administrator must send a revised Form 7 to the pension fund trustee within 60 days of becoming aware of the change.

Trustees of pension plans (which for this purpose include insurance companies) are not required to complete Form 7’s. But trustees have an important, independent legal obligation to notify the Ontario Superintendent of Financial Services if they do not receive the required Form 7. Further, if contributions to the pension plan are not received by the trustee in accordance with the estimates in the Form 7 received by the trustee, the trustee must notify the Superintendent. There are prescribed time limits for all of these requirements.

In essence, the Form 7 rules require pension fund trustees to police timely plan contributions. The law requires trustees to blow the whistle if a plan administrator is not making contributions on time.

In 2013 a trustee was prosecuted in Ontario for failing to report the non-filing of a Form 7 with respect to a plan administrator who eventually filed for bankruptcy protection from its creditors. The trustee plead guilty and was fined $50,000.

The gravity of compliance with Form 7 rules was recently emphasized by the Ontario pension regulator in an announcement that can be found here. A few days ago, the regulator released a revised Form 7 that can be found here, as well as a comprehensive User Guide that can be found here, to assist plan administrators in completing Form 7. It also released two new standardized templates, to be used by pension fund trustees to report to the Superintendent when a plan administrator fails to submit a Form 7, or fails to make the contributions as summarized in a Form 7. The templates can be found here.

Although Form 7 is a prescribed form, it does not have to be filed with the Ontario pension regulator. It is simply a required communication from plan administrators to pension fund trustees. Do not take this as an indication that the Ontario pension regulator is indifferent about compliance with the Form 7 rules. It has clearly demonstrated that it requires compliance, and it has provided a guide and templates to assist the pension industry with the rules.

Ontario employers are reminded that the general minimum wage in Ontario increased on October 1, 2016 to $11.40 per hour, up from $11.25 per hour. The liquor server minimum wage also increased to $9.90 per hour and the student minimum wage is now $10.70 per hour. The Ontario minimum wage is indexed to Ontario’s Consumer Price Index so future increases will be published on or before April 1 and will come into effect on the following October 1.

An Ontario Court has ruled in Bevilacqua v Gracious Living Corporation, 2016 ONSC 4127 that even in cases where an employer has complied with the temporary layoff provisions of the Employment Standards Act, 2000 (the “Act”), the layoff does not protect the employer from a successful claim in constructive dismissal by the employee at common law. In the case, a 15 year Facilities Manager was told by his employer that he was being temporarily laid off and that he would be recalled in three months. His company benefits were continued during the layoff period. While the layoff was done in accordance with the Act, the employee immediately took the position that he had been effectively terminated when he was placed on layoff. The Court agreed with the employee, and held that absent a provision in the employee’s employment contract allowing for a temporary layoff, a unilateral layoff constituted a constructive dismissal, regardless of whether it was done in compliance with the Act. The employee in the case, who was unemployed for 15 months after he was placed on layoff, was less successful with the remedy that the Court ordered. The employee was entitled to be paid for the three months he was on layoff, but the Court found that he had failed to mitigate his damages when he declined the employer’s offer to return to his old job after the layoff period was over.

Employers who wish to place employees on unpaid layoff should use this case as a reminder to update their employment agreements to provide for the right to unilaterally impose temporary layoffs in accordance with the Employment Standards Act, 2000 without further notice or compensation.

The Ontario Court of Appeal has held that the words “accept business”, in what the employer intended to be a non-solicitation clause, served to restrict competition and is therefore not merely a non-solicitation clause.

In this case, the personal defendant, Mary Murphy, was employed by the plaintiff Donaldson Travel Inc. (“DTI”) as a travel agent from October 2004 to April 2007 and then again from June 2007 to February 3, 2012, when she resigned from that employment. On February 6, 2012, Ms. Murphy commenced employment as a travel agent with the defendant, Goliger’s TravelPlus (“Goliger’s”).

Following Ms. Murphy’s resignation, DTI brought claims of breach of contract, misappropriation of confidential information, inducing breach of contract and interference with contractual relations against Ms. Murphy, Goliger’s and its President and director. Its claims were dismissed on a summary judgment motion, and DTI appealed to the Court of Appeal.

One of the issues on appeal was whether the motion judge erred in finding that the restrictive covenant in Ms. Murphy’s contract with DTI was in fact a non-competition clause rather than a non-solicitation clause, and therefore that it was unreasonable and unenforceable.

The clause at issue stated:

Mary agrees that in the event of termination or resignation that she will not solicit or accept business from any corporate accounts or customers that are serviced by Uniglobe Donaldson Travel, directly, or indirectly.

The Court of Appeal agreed with the motion judge that, based primarily on the language “or accept business”, the restrictive covenant did in fact restrict competition and was therefore a non-competition clause. Further, the Court of Appeal held that since this non-competition clause contained no temporal limitation, there was no basis on which to interfere with the motion judge’s conclusion that the clause was unreasonable and therefore unenforceable.

DTI’s appeal was dismissed with costs of $7,500.00 awarded to each defendant.

The key takeaway from this case is to ensure that the language of restrictive covenants is carefully chosen, so as to avoid inadvertently going beyond what is considered sufficient in the circumstances (in this case a non-solicitation clause) to protect an employer’s proprietary interest.

Ontario is on the verge of implementing new rights for members of registered pension plans. Members will have the right to form committees that will have broad rights to review information about all aspects of plan administration including investments. Employers who sponsor or administer a registered pension plan should familiarize themselves with these new Ontario legal requirements. They are not yet law, but likely will be in a matter of months.

Last week the Ontario government released revised draft regulations about these new legal requirements, seeking comments by September 12th, 2016. The new requirements have been kicking around in draft for the past six years and will replace current Ontario legislation regarding member advisory committees. Most employers probably haven’t heard of the current requirements regarding such committees, because the current rules have no teeth. The new ones will. You can find the new requirements here.

The new requirements will apply to pension plans that have at least 50 members (including retirees). For those plans, if 10 members (or their union) notify their plan administrator of their desire to form a member advisory committee, a process must be launched to inform all plan members and conduct a vote. If a majority of members vote in favour of establishing an advisory committee, it should be established in a matter of months. The plan administrator will have no right to representation on the committee. Reasonable expenses of the committee are payable from the pension fund.

Once a new committee is formed, the plan administrator must:

arrange for the plan actuary (for defined benefit plans) to meet with the committee at least annually;

give the committee access, at least annually, to an individual who can report on the plan’s investments; and

give information to the committee, and allow it to examine the plan records.

These new legal requirements will not give plan members a say on how their plan should be administered, but they certainly will change the landscape of members’ access to information about their pension plan. The new requirements will come into play only where there is sufficient interest among members, or unions, in forming a member advisory committee.

These new Ontario rules will create an entirely new type of scrutiny of pension plan administration. Prepare now.

The end of summer is (unfortunately) just around the corner, which for many employers means saying goodbye to student employees and seasonal workers. Most employers know that they need to complete a record of employment (ROE) when an employee terminates, but there are a number of other circumstances that require an ROE. Now is as good a time as any for a quick refresher on when employers need to complete a record of employment (ROE) for an employee and why it is important to do so correctly. My goal is not to give detailed instructions about completing ROEs; but to highlight the importance of properly issuing them and the potential liability from failing to do so.

ROE Overview

The ROE is the form employers complete when an employee receiving insurable earnings stops working such that he/she experiences an interruption of earnings. Service Canada considers ROEs to be the single most important documents in the Employment Insurance (EI) program.

When to Complete an ROE

You may have noticed I used the term “interruption of earnings” above and not “termination of employment” when describing when an ROE is required. That is because, as mentioned, ROEs are required in a wider range of circumstances (I will not get into the technical definition of “insurable earnings”, but suffice to say it includes most employees’ salary or wages).

An interruption of earnings occurs in the following situations:

when an employee has had or is anticipated to have seven consecutive calendar days with no work and no insurable earnings from the employer (the “seven-day rule”);

In addition to the above interruptions of service, employers must also complete ROEs in the following instances:

when Service Canada requests an ROE for an employee;

when an employee’s pay period type changes (e.g., weekly to bi-weekly);

when an employee is transferred to another Canada Revenue Agency (CRA) payroll number;

when there is a change in ownership leading to a change in the employer;

when the employer declares bankruptcy;

when a part-time, on-call or casual worker is no longer on the employer’s active employment list or has not done any work or earned any insurable earnings for 30 days; or

when an employee is on a self-funded leave of absence.

The Importance of ROEs

There is not a great deal of litigation relating to ROEs, but incorrectly completing (or failing to complete) an ROE has attracted common law liability for employers.

One type of case occurs when an employer intentionally misrepresents the reason for the interruption of service or withholds an ROE from a departing employee. Allegations of misconduct on an ROE can disqualify an employee from eligibility for EI. If the allegations are untrue, or if an ROE is withheld, the employer can be liable to the employee for the resulting loss of EI payments and potentially for additional damages for bad faith conduct towards the employee.

Liability may also arise in cases where an ROE is used as evidence that a seasonal or fixed-term employee is in fact a permanent employee and therefore entitled to common law notice. Courts have found that using the word “unknown” instead of “not returning” on an ROE for a seasonal worker indicated that the employment was permanent and that the seasonal return date was simply unknown at the time. Similarly, failing to issue an ROE at the end of each of a series of fixed-term contracts has been evidence that an employee was a permanent employee.

ROEs may be a hassle to complete, but it is important that employers keep track not only of when they need to be issued, but to ensure that they are completed correctly and accurately. For more information about completing ROEs, the CRA provides a helpful guide (Guide) and, of course, you may get in touch with a member of Dentons’ Labour and Employment group.

Further to our series of posts on Ontario’s new Sexual Violence and Harassment Legislation, which amends the Occupational Health and Safety Act, the Ontario Ministry of Labour has recently issued a Code of Practice to Address Workplace Harassment under Ontario’s Occupational Health and Safety Act. The Code of Practice deals with the OHSA’s new Workplace Harassment provisions, which come into force on September 8, 2016. The Code of Practice is effective as of that same date.

Importantly, although employers are not legally required to comply with the Code of Practice, those who do will be considered by the Ministry to have complied with the harassment provisions of the OHSA. As such, the Code of Practice is a practical tool that employers can use to ensure compliance.

The Code of Practice is divided into four Parts, each of which is further subdivided into a “General Information” section, which provides guidance on the interpretation of the OHSA’s Workplace Harassment provisions, and a “Practice” section, which details requirements that employers may follow to comply with the OHSA.

The Code of Practice’s Preface indicates that following its requirements is “just one way in which employers can meet the legal requirements regarding workplace harassment” and a failure to comply with all or part of the Code of Practice may not be a breach of the OHSA. However, the Code of Practice also states that, while employers may choose to adhere to one or all of the Code of Practice’s Parts, if an employer does adhere to a Part, it must adhere to all of the Practice requirements under that Part in order to be deemed in compliance with the related Workplace Harassment provision in the OHSA.

The Code of Practice’s “General Information” sections provide guidance on the interpretation of the OHSA’s Workplace Harassment provisions, as follows:

Part I: Workplace Harassment Policy – This section outlines the contents of a Workplace Harassment Policy and explains that employers may choose to prepare a separate Workplace Harassment Policy or combine it with their workplace violence, occupational health and safety and/or anti-discrimination and anti-harassment policies. A template Workplace Harassment Policy is included in the Code of Practice (Sample Workplace Harassment Policy)

Part II: Workplace Harassment Program – This section considers reporting mechanisms for incidents and complaints of Workplace Harassment. In particular, it clarifies that a person who receives a complaint of Workplace Harassment should not be under the alleged harasser’s direct control. Further, in instances where the worker’s employer or supervisor is the alleged harasser, an alternate person who can “objectively address the complaint” must be designated to receive reports of Workplace Harassment, such as an employer’s board of directors and/or a consultant. Further, the Workplace Harassment program should set out whether this person would only receive the complaint, or whether this person would be expected to carry out an investigation.

This section also considers the consequences of incidents of Workplace Harassment. In incidents arising from individuals who are not the employer’s workers, the section suggests that employers could either modify or refuse its services to such people. Consequences for workers could include: apologies, education, counseling, shift changes, reprimands, suspension, job transfer, termination or, in instances where workplace harassment is prevalent or commonplace, training for everyone in the workplace.

Part III: Employer’s Duties Concerning Workplace Harassment – This section relates to investigations into Workplace Harassment and provides that: an “appropriate investigation” must be “objective”; the investigator must not be “directly involved in the incident or complaint” or “under the direct control of the alleged harasser”; and the investigator should have knowledge of how to conduct an investigation appropriate in the circumstances. The parties to the complaint should be updated periodically on the status of the investigation. The Code of Practice includes a sample investigation template, which can be found here: Sample Investigation Template

Part IV: Providing Information and Instruction on a Workplace Harassment Policy and Program – This section outlines the scope of the “Information and Instruction” that an employer must provide to its workers under the OHSA. Employers provide information and instruction on “what conduct is considered workplace harassment” and supervisors need to receive specific instruction on “how to recognize and handle a workplace harassment incident”. The employer should keep records of the information and instruction provided to its workers for at least one year.

Notably, the “Practice” sections list additional requirements that are not contemplated by the OHSA’s new Workplace Harassment provisions, including, but not limited to:

Indicating, in a Workplace Harassment Program, when an external person will be retained to conduct a workplace harassment investigation (for example, but not limited to, when the alleged harasser is a president, owner, high-level management or senior executive);

A timeframe of 90 calendar days or less to complete an appropriate investigation, unless there are extenuating circumstances warranting a longer investigation (e.g. more than five witnesses or key witnesses unavailable due to illness);

Listing seven steps to an investigation that an employer must complete, at a minimum, including giving the alleged harasser(s) the opportunity to respond to allegations raised and, in some circumstances, providing the worker who has experienced Workplace Harassment with a reasonable opportunity to reply; and

That corrective action, if any, that is or will be taken as a result of the investigation, must be communicated in writing within 10 calendar days of the investigation being concluded.

The Ministry of Labour indicates that the Code of Practice is “designed to help employers meet their obligations” with respect to the OHSA’s Workplace Harassment provisions. As such, it provides insight on the Ministry of Labour’s expectations for developing, implementing and maintaining Workplace Harassment Policies and Programs. While employers do not need to comply with the Code of Practice’s requirements to ensure compliance with the OHSA, a consideration of the information and requirements set out in the Code of Practice will help employers address Workplace Harassment in a manner that is consistent with the Act and the Ministry’s expectations. The full text of the Code of Practice can be found here.

The Ontario Court of Appeal’s decision in the case of Paquette v. TeraGo Networks Inc. should have all employers running to double-check and possibly amend their bonus plans. A further case released on the same day by the same panel of judges further confirmed the law set out in the Paquette decision.

Trevor Paquette had been employed by TeraGo Networks for approximately 14 years at the time of termination. He brought a motion for summary judgment and his common law notice period was found to be 17 months. The motions judge also determined that he was entitled to damages in lieu of his remuneration for the entire notice period, although he denied entitlement to damages in lieu of bonus entitlement over the notice period. The matter proceeded to appeal solely on the basis of whether or not Paquette was entitled to damages in lieu of bonus during his 17 month notice period.

Paquette’s bonus plan stated that he had to be “actively employed” at the time the bonus was paid in order to receive same. The Court of Appeal reviewed a number of similar bonus and stock option plan cases, and confirmed that the following is the state of the law in Ontario:

Subject to contractual terms, a terminated employee is entitled to compensation for all losses arising from the employer’s failure to give proper notice, and the damages award should place the employee in the same financial position he or she would have been in had such notice been given. In Paquette’s case, since he would have earned a bonus had he been given working notice, the use of the words “active employment” could not be used as an end-run around his claim for the bonus over the pay in lieu of notice period.

The test to be followed is two-fold: (i) the first step is to determine an employee’s common law rights and whether a bonus forms an integral part of the employee’s compensation; and (ii) the second step is to determine whether there is something in the bonus plan that would specifically remove that common law entitlement.

An “active employment” requirement does not preclude the employee from receiving damages representing compensation for the bonuses which the employee would have received if employment had continued through the reasonable notice period.

The key for employers then, is to ensure that the language of any bonus plan is sufficiently clear that the common law entitlement to damages in lieu of bonus is expressly removed. As every bonus plan is different and as the drafting of this sort of exclusionary language is obviously complex, legal advice should always be sought by employers when it comes to limitations set out in bonus plans.

Changes made to the Ontario Pension Benefits Act and Regulation (the “Ontario PBA”), which came into force on January 1, 2016, now require a pension plan’s statement of investment policies and procedures (“SIPP”) to include information as to whether environmental, social and governance (“ESG”) factors are incorporated into the plan’s SIPP and, if so, how those factors are incorporated. The changes have raised more questions than there are answers for plan administrators. The primary question is whether there is a legal requirement to take ESG into account or must the administrator simply consider whether, or not, to incorporate ESG?

Ontario is not the only jurisdiction to introduce ESG into the SIPP equation. In 2005, Manitoba indicated that fiduciaries could consider ESG factors provided administrators otherwise complied with statutory fiduciary duties. Not taking ESG factors into account is not a breach of any statutory law (at least not yet), but Ontario’s recent move has certainly added to the not-so-old debate: Is a failure to consider ESG factors in your pension plan’s SIPP a breach of fiduciary duty?

On a basic level, it is the fiduciary’s role as plan administrator to be responsible for investing the pension fund in accordance with the administrator’s standard of care, in a prudent manner and always in the best interest of plan beneficiaries. Pursuant to section 22 of the Ontario PBA, prudent investing entails understanding, monitoring and investigating risk. The administrator is responsible for determining what prudence requires within the context of the plan in question.

North American investors have in general been slow to incorporate ESG factors into their investment research, analysis and decision making, whereas European investors have been doing so for many years.

Canada’s large public sector pension funds, including CPP, Ontario Teachers’, HOOPP, OMERS, bcIMC and others, have now incorporated ESG into their investment policies. CPP Investment Board has stated:

“We believe that organizations that manage Environmental, Social and Governance (ESG) factors effectively are more likely to create sustainable value over the long term than those that do not. As we work to fulfill our mandate, we consider and integrate ESG risks and opportunities into our investment decisions.”

The link between ESG issues and bottom line profits and share prices was illustrated late in 2015 when BHP Billiton and Vale’s horrific mine disaster in Brazil resulted in the deaths of 17 people as well as hundreds of individuals losing their homes due to a massive dam burst. In February 2016, BHP recognized a US$1.12 billion provision related to the disaster.

The questions for administrators include:

How should you balance your primary objective to achieve optimal rates of return within an acceptable level of risk?

Should an investment target company’s ESG record take precedence over its increase in share price?

Administrators face significant hurdles in gathering relevant non-financial (or extra-financial) data if they wish to take ESG factors into account. Independent ESG research and analysis firms are available to help pension fund administrators gather materially relevant information on potential investments and their respective corporate ESG performance as well as information on external managers, many of whom are already integrating ESG factors into their investment processes.

Bottom line for administrators, if ESG factors are determined to be of importance in their investment policies and procedures, their first step is to separate the identifiable legal implications that will arise from incorporating ESG information into their SIPP and how their governance committee is expected to assess ESG analytics into their overall risk management policies. Does ESG act as a tie breaker when other financial considerations appear equal? How should administrators communicate (and document) their ESG factors and decision-making processes to the plan beneficiaries?

Plan administrators should seek legal advice to ensure their fiduciary duties are fulfilled if (and more likely when) they begin to embark on considering ESG factors into their investment decision-making process.

I recently wrote about the legal risks regarding plan fees that should be considered by Canadian employers who sponsor group registered retirement savings plans and defined contribution pension plans (that article can be found here). These risks have been emphasized by several lawsuits filed against U.S. employers in the last few months. The following is a brief update on litigation activity in the U.S. which should give pause to Canadian employers who sponsor capital accumulation plans for their employees.

This week, no fewer than seven high-profile U.S. universities were sued regarding fees charged in their defined contribution retirement plans. Plaintiffs are seeking class-action status against these U.S. educational institutions alleging, among other things, that their employers acted imprudently by selecting high-cost funds for the plans when lower-cost alternatives were available. These lawsuits are part of a trend that has emerged in the last decade: claims against large and small U.S. employers which allege that fees haven’t been adequately disclosed, service providers are being paid unreasonable fees for the services they provide, and insufficient diligence has been carried out to properly select reasonably-priced funds and monitor whether fees remain competitive for years after funds are selected.

Some commentators have referred to this trend as a gold rush for lawyers. Several very large, respected U.S. companies have settled claims for tens of millions of dollars, while at the same time asserting that they have acted prudently in charging plan fees for administration, record-keeping and investment services.

The spate of U.S. litigation should prompt Canadian employers to mull over the following obvious questions: Do plan fees hold up against a benchmark of fees charged by other plans? Could the same services be provided at a lower price? Has the employer conducted, and kept records of, regular reviews of fee options? Was expert advice obtained in selecting funds and negotiating with service providers and investment managers? Consider this wording in a very recent claim against a small U.S. employer:

“Defendants had a flawed process – or no process at all – for soliciting competitive bids, evaluating proposals with respect to services offered and reasonableness of fees for those services, actively monitoring the reasonableness of fees assessed to Plan participants, and choosing a service provider on a periodic, competitive basis.”

Could all Canadian employers defend such allegations – especially those who have not paid attention to the fees charged in their plans for a few years? They may mistakenly think that their trusted service provider will inform them if fees could be reduced. That may not be the legal obligation of a service provider. And it may not be in the financial best interests of service providers to do so.

The Ontario pension regulator has formally encouraged pension plan administrators to shine a light on fees. It stated in a 2016 guideline that it expects employers who sponsor defined contribution pension plans to give “due consideration” to including wording in statements of investment policies and procedures that sets out “expectations, ranges, or limits on total plan expenses and fees; and guidelines for monitoring expenses and fees”. Good advice, especially in light of the litigation on this topic in the U.S.

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